Adm&x v. Curator

• Decision Date: 10 March 1910
• Court: Virginia Supreme Court
• Parties: BEAVERS' ADM'X v. PUTNAM'S CURATOR.

67 S.E. 353

110 Va. 713

BEAVERS' ADM'X

v.PUTNAM'S CURATOR.

Supreme Court of Appeals of Virginia.

March 10, 1910.

1. Abatement and Revival (§ 58^*)—Personal Actions.

At common law, personal actions died with the person and could not be revived by or against the personal representative.

[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 294-309; Dec. Dig. 8 58.*]

2. Death (§ 11*)—Right of Action—Nature.

The effect of Code 1904, § 2902, providing that when death is caused by the wrongful act of another, such as to have given a right of action to the injured party if death had not ensued, the person who would then have been liable shall be subject to an action for damages, is not to revive the right of action which the decedent had, but to give the personal representative of deceased a totally new right of action as trustee for the beneficiaries named in the subsequent sections.

[Ed. Note.—For other cases, see Death, Cent. Dig. § 15; Dec. Dig. § 11.*]

3. Common Law (§ 14*)—Binding Effect.

The common law is still the law of the land except so far as it is changed by statute.

[Ed. Note.—For other cases, see Common Law, Cent. Dig. § 3; Dec. Dig. § 14.*]

4. Death (§ 30*)—Abatement and Revival-Death of Wrongdoer.

Code 1904, § 2902, provides that whenever the death of a person shall be caused by the wrongful act of another, and the act, if death had not ensued, would have entitled the party injured to sue, then the person who would have been liable shall be liable in an action for damages notwithstanding the death of the person injured, etc., and section 2906 declares that such right of action shall not abate by the death of the defendant. Plaintiff's intestate was shot by P., who then shot himself, and died before the death of plaintiff's intestate. Held, that intestate's action for injuries did not survive to her personal representative, since the right of action created by section 2902 did not accrue until her death, and hence never came into existence by reason of the prior death of the wrongdoer.

[Ed. Note.—For other cases, see Death, Cent. Dig. § 34; Dec. Dig. § 30.*]

Error to Circuit Court, Fairfax County.

Action by Elizabeth C. Beavers against John D. Putnam, as curator of Silas W. Putnam. From a judgment for defendant, plaintiff brings error. Affirmed.

Leo P. Harlow and Wolf & Rosenberg, for plaintiff in error.

C. V. Ford, for defendant in error.

KEITH, P. Emma Beavers was shot by Silas W. Putnam, and a few hours thereafter died from the effects of the wound she had received. Putnam then shot himself, dying in a very short time thereafter, his death preceding that of Emma Beavers. The administratrix of Emma Beavers brought suit against the curator of Silas Putnam, the declaration stating the foregoing facts, and claiming damages to the amount of $10,000.

The defendant demurred to this declaration, and for cause of demurrer alleges that the declaration shows no lawful cause of action against the defendant, nor any wrong or trespass committed by him; that it is not competent to sue the curator for the tort alleged to have been committed by the curator's decedent; and that it is necessary for the declaration to show and allege that at the time of the death of plaintiff's intestate the defendant's intestate was alive, otherwise on death of defendant's intestate the allegedcause of action abated and died at common law and is not kept alive by statute.

There are other specifications of grounds of demurrer, but those to which we have referred sufficiently present the questions to be considered.

At common law, it is conceded that personal actions died with the person and could not be revived, either by or against the personal representative; but at an early day (4 Edw. III, c. 7) a right of action was given to executors for goods and chattels of their testators carried away in their lifetime, and by section 2655 of our Code it is provided that "for the taking or carrying away any goods, or the waste or destruction of, or damage to, any estate of or by his decedent, a personal representative may sue or be sued."

Discussing this subject in Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S. E. 269, Judge Riely said: "But while the rule of the common law has been much restricted and limited by statutes, both in England and in this country, and the right to sue for an injury done to the property or estate of the decedent in his lifetime has been conferred on the personal representative of the deceased, the rule has not been altered in this state in respect of an injury done to the person. An action for an injury to the person still, as at common law, dies with the person, and no right of action for such injury survives to his personal representative."

It was claimed in that case that by virtue of sections 2902, 2903, and 2906 of our Code the right of action for injury to the person, produced by the wrongful act, neglect, or default of another, survived to the personal representative, so that the limitation upon such right of action would be five years and not one year; but it was there held that such was not the effect of those sections; that the right of action given by them is not a survival of the right of action which existed in the injured person prior to his death, but an independent right of action, created and not merely continued by our statutes.

"The act requires the suit to be brought by and in the name of the personal representative, but he by no means sues in his general right of personal representative. He sues wholly by virtue of the statute and in respect of a different right. His suit proceeds on different principles. He sues not for the benefit of the estate, but primarily and substantially as trustee for certain particular kindred of the deceased, who are designated in the statute." Anderson v. Hygeia Hotel Co., supra.

There can be no doubt that at common law the action in this case could not have been maintained, and it remains only to be considered whether or not it is such an action as is contemplated by sections 2902, 2903, and 2906 of the Code of Virginia.

By section 2902 it is provided that, "Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect or default is such as would (if death had not ensued)...